If you have recently separated from your partner this may have come as a huge shock, or you may have planned it for some time but only recently, for all sorts of reasons, communicated the fact that you want to leave. Whatever the circumstances there are number of issues to resolve. Here is a brief guide to things you might need to think about :-
How to formalise a separation – if you are married are you thinking of divorcing at this point in time , or would you prefer to wait a while?. There is a lot of noise in the press about the change to a “no fault divorce”, “quickie divorce” and whilst it is hoped that the law in this Country will move on , the fact is at present the only way to obtain a divorce without waiting for a minimum of two years following separation is to petition the other party on the fact of either adultery or behaviour.
That said even on a fault based ground it is may well be possible to agree the facts to be cited in the divorce with the other party if you both agree that divorce is way to proceed. If you do decide to issue divorce proceedings then unless the other party formally contests the divorce you do not need to attend a Court to divorce. It is a paper based administrative procedure and whilst it has of course huge significance the next two factors are perhaps the most important to resolve.
Children – if you have children together then it is important to try to agree practical arrangements for their care as soon as possible. The guiding principle in law is that children should spend significant amounts of time with each parent so long as it is safe for them to do so.
If you do have any safety/welfare concerns about your children being in the care of the other parent then it is extremely important that you seek specialist advice at an early stage. If the issues relate to the practical division of time and how your children will adjust to living in two separate houses then the process of family mediation can help you and the other party reach an arrangement which you can both move forward with.
Specially trained mediators can also assist by speaking to your children to see how they feel about your separation and the arrangements you are looking to make for their on-going care.
Unless there are serious issues then it is important to agree and achieve structured arrangements for the care of your children. It is likely to be an extremely fraught and emotive time and as such it is a good idea to seek advice to talk through concerns.
Financial issues – There are various processes you can use to resolve financial issues. These include family mediation; collaborative law; private law arbitration and financial remedy proceedings. Whichever process you use there are two essential stages:-
The exchange of financial information
Negotiation or adjudication.
It is very important to exchange financial information with the other party so that you can make informed decisions as to your financial future. Even if the two of you were to reach an agreement direct, then if you are wanting a Court to make the agreement into a legally binding order you still need to complete a financial statement for the Court. If you are married then you each have claims for income, capital and claims relating to pension provision. There are certain key principles in law which in turn are underpinned by 100’s of 1000’s of pieces of case law i.e legal cases which have been decided on key principles which the Courts use as a guide. If you are at all unsure as to your legal position it is important to take specialist advice.
Initial matters you may wish to consider are as follows:-
- How to achieve a physical separation – who will remain in the property pending a financial settlement being reached;
- What contributions do you each need to make towards the mortgage; bills and payments towards any children;
- If you have pension provision then contact your pension company and request the Cash Equivalent Transfer Value for your scheme. Some providers take weeks to release that information so it is better to make an early request;
- If you have properties / businesses then these will need to be valued;
- It may be that you need a financial contribution from the other party, or if you are the main earner it may be that one will be sought from you;
- If the family home is not in your name you may wish to register a Homes Rights Notice against the property to protect your interest the property until a settlement is reached;
- If the family home is owned by the two of you as Joint Tenants then you may wish to consider severing the tenancy to protect your 50% interest on death.
In summary , there are many issues to sort out upon separation. It is important to take early and specialist legal advice from a family legal specialist. For more information please contact us at enquiries@clarkfamilylaw.co.uk or 01423 637272.